CONVISER MINI REVIEW

TORTS
 C CM R CONVISER MINI REVIEW i.

TORTS MINI REVIEW

TABLE OF CONTENTS

I. NEGLIGENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
A. PRIMA FACIE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
B. DUTY OF CARE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1. Foreseeable/Unforeseeable Plaintiffs . . . . . . . . . . . . . . . . . . . . . . . 1
2. Specific Situations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
3. Standards of Care . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
4. Duty Regarding Negligent Infliction of Emotional Distress . . . . . . . . . . . 6
5. Affirmative Duties to Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
C. BREACH OF DUTY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1. Custom or Usage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2. Violation of Statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3. Res Ipsa Loquitur . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
D. CAUSATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
1. Actual Cause (Causation in Fact) . . . . . . . . . . . . . . . . . . . . . . . . . 8
2. Proximate Cause (Legal Causation) . . . . . . . . . . . . . . . . . . . . . . . . 9
E. DAMAGES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
1. Personal Injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2. Property Damage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3. Punitive Damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4. Nonrecoverable Items . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
5. Duty to Mitigate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
6. Collateral Source Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
F. DEFENSES TO NEGLIGENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
1. Contributory Negligence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
2. Assumption of Risk . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
3. Comparative Negligence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

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TORTS MINI REVIEW

I. NEGLIGENCE
A. PRIMA FACIE CASE
Elements of the prima facie case:
(i) A duty on the part of defendant to conform to a specific standard of conduct for protection
of plaintiff against an unreasonable risk of injury;
(ii) A breach of that duty by defendant;
(iii) The breach is the actual and proximate cause of plaintiff’s injury; and
(iv) Damage.
B. DUTY OF CARE
A duty of care is owed to all foreseeable plaintiffs. If the defendant’s conduct creates an unreason-
able risk of injury to persons in the position of the plaintiff, the general duty of care extends from
the defendant to the plaintiff. The extent of the duty is determined by the applicable standard of
care. Therefore, when confronted with a negligence question, always ask:
(i) Was the plaintiff foreseeable?
(ii) If so, what is the applicable standard of care?
1. Foreseeable/Unforeseeable Plaintiffs
A duty of care is owed only to foreseeable plaintiffs. However, a problem arises where
defendant breaches a duty to one plaintiff (“P1”) and also causes injury to another (possibly
unforeseeable) plaintiff (“P2”). The Palsgraf case offers two possible outcomes:
a. Cardozo View (Majority)—Foreseeable Zone of Danger
P2 can recover only if she can establish that a reasonable person would have foreseen
a risk of injury to her under the circumstances; i.e., she was located in the foreseeable
zone of danger.
b. Andrews View (Minority)—Everyone Is Foreseeable
P2 may establish the existence of a duty extending from defendant to her by a showing
that defendant has breached a duty owed to P1.
2. Specific Situations
a. Rescuers
A rescuer is a foreseeable plaintiff where defendant negligently put himself or a third person
in peril (i.e., danger invites rescue). However, firefighters and police officers may be barred
by the “firefighter’s rule” from recovering for injuries caused by the risks of a rescue.
b. Prenatal Injuries
A duty of care is owed to a viable fetus. In cases of failure to diagnose a congenital
defect or properly perform a contraceptive procedure, the child may not recover
for “wrongful life,” but the parents may recover damages in a “wrongful birth” or
“wrongful pregnancy” action for any additional medical expenses and for pain and
suffering from labor; ordinary child-rearing expenses, however, cannot be recovered.

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c. Intended Beneficiaries of Economic Transactions

A third party for whose economic benefit a legal or business transaction was made (e.g.,
a beneficiary of a will) may be a foreseeable plaintiff.
3. Standards of Care
a. Basic Standard—The Reasonable Person
The reasonable person standard is an objective standard, i.e., one’s conduct measured
against what the average person would do. A defendant’s mental deficiencies and
inexperience are not taken into account (i.e., stupidity is no excuse). However, the
“reasonable person” is considered to have the same physical characteristics as defendant
(but remember, one is expected to know one’s physical handicaps and to exercise the
care of a person with such knowledge—e.g., a blind person should not fly a plane).
b. Particular Standards of Conduct

1) Professionals
A professional or someone with special occupational skills is required to possess
the knowledge and skill of a member of the profession or occupation in good
standing in similar communities. Medical specialists will be held to a national
standard of care. The modern trend applies a national standard to all physicians.
a) Duty to Disclose Risks of Treatment
A doctor has a duty to disclose the risks of treatment to enable a patient to
give an informed consent. A doctor breaches this duty if an undisclosed risk
was serious enough that a reasonable person in the patient’s position would
have withheld consent on learning of the risk.
2) Children
Children are held to the standard of a child of like age, education, intelligence,
and experience. This is a subjective test. A child under four is usually without the
capacity to be negligent. Children engaged in adult activities may be required to
conform to an “adult” standard of care.
3) Common Carriers and Innkeepers
Common carriers and innkeepers are held to a very high degree of care; i.e., they
are liable for slight negligence.

C CM R Exam Tip For the higher common carrier and innkeeper standards to apply, the
plaintiff must be a passenger or guest.
4) Automobile Driver to Guest
A guest in an automobile is owed a duty of ordinary care. In the few guest statute
states, one is liable to nonpaying passengers only for reckless tortious conduct.
5) Bailment Duties
In a bailment relationship, the bailor transfers to the bailee possession of the
chattel but not title (e.g., bailor loans her car to bailee).

a) Duties Owed by Bailee

The bailee’s standard of care depends on who benefits from the bailment: (i)
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for a sole benefit of the bailor bailment, there is a low standard of care; (ii)
for a sole benefit of the bailee bailment, there is a high standard of care; and
(iii) for a mutual benefit bailment (typically a bailment for hire), there is the
ordinary care standard. The modern trend applies a duty of ordinary care
under the circumstances, whereby the type of bailment is just one factor taken
into account.
b) Duties Owed by Bailor
For a sole benefit of the bailee bailment, the bailor must inform the bailee of
known, dangerous defects in the chattel. For a bailment for hire, the bailor
must inform the bailee of chattel defects of which he is or should be aware.

6) Emergency Situations
A defendant must act as a reasonable person would under the same emergency
conditions. The emergency is not to be considered, however, if it is of defendant’s
own making.

c. Owners and/or Occupiers of Land

The extent of the liability of owners and/or occupiers of land (and those in privity with the
owner/occupier) depends on where the injury occurred and on the status of the plaintiff.

1) Duty of Possessor to Those Off Premises

There is no duty to protect one off the premises from natural conditions on the
premises; however, there is a duty for unreasonably dangerous artificial condi-
tions or structures abutting adjacent land. Also, one must carry on activities on the
premises so as to avoid unreasonable risk of harm to others off the premises.

C CM R Exam Tip In urban areas, the owner/occupier is liable for damage caused off the
premises by trees on the premises (e.g., falling branches). This has been an exam
favorite in recent years.

2) Duty of Possessor to Those On Premises

In most states the duty owed a plaintiff on the premises for dangerous conditions
on the land depends on the plaintiff’s status as trespasser, licensee, or invitee.

a) Duty Owed to Trespassers

No duty is owed to an undiscovered trespasser. As to discovered or antici-
pated trespassers, the landowner must: (i) warn of or make safe concealed,
unsafe, artificial conditions known to the landowner involving risk of death
or serious bodily harm, and (ii) use reasonable care in the exercise of “active
operations” on the property. (No duty is owed for natural conditions or less
dangerous artificial conditions.) Easement and license holders owe a duty of
reasonable care to trespassers.

b) Attractive Nuisance Doctrine

Most courts impose on a landowner the duty to exercise ordinary care to
avoid a reasonably foreseeable risk of harm to children caused by dangerous
conditions on his property. This is typically an artificial condition but
occasionally a natural condition may suffice. To establish the doctrine’s
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applicability, plaintiff must show: (i) a dangerous condition on the land that
the owner is or should be aware of, (ii) the owner knows or should know
children frequent the vicinity of the condition, (iii) the condition is likely to
cause injury (i.e., it is dangerous because of the child’s inability to appreciate
the risk), and (iv) the expense of remedying the situation is slight compared
with the magnitude of the risk.

C CM R Exam Tip For liability to attach, the four requirements above must be
shown. The child does not have to be attracted onto the land by the dangerous
condition, nor is the attraction alone enough for liability.

c) Duty Owed to Licensees

A licensee is one who enters onto the land with the possessor’s permission
for her own purpose or business, rather than for the possessor’s benefit. The
possessor has a duty to (i) warn of or make safe dangerous conditions (natural
or artificial) known to the owner that create an unreasonable risk of harm
to the licensee and that the licensee is unlikely to discover, and (ii) exercise
reasonable care in the conduct of “active operations” on the property. The
possessor has no duty to inspect or repair. (Remember: Social guests are
considered licensees.)

d) Duty Owed to Invitees

Invitees enter onto the land in response to an invitation by the landowner
(i.e., they enter for a purpose connected with the business of the landowner
or enter as members of the public for a purpose for which the land is held
open to the public). The landowner or occupier owes the same duties owed
to licensees plus a duty to make reasonable inspections to discover nonob-
vious dangerous conditions and, thereafter, make them safe (a warning may
suffice). One will lose invitee status if she exceeds the scope of the invitation.

e) Duty Owed to Users of Recreational Land

A landowner who permits the general public to use his land for recreational
purposes without charging a fee is not liable for injuries suffered by a recre-
ational user, unless the landowner willfully and maliciously failed to guard
against or warn of a dangerous condition or activity.

f) Modern Trend Rejects Status Rules

A strong minority of states reject the distinction between licensees and
invitees (and, in a few states, trespassers as well), and simply apply a reason-
able person standard to dangerous conditions on the land.

3) Duties of Lessor and Lessee of Realty

The lessee has a general duty to maintain the premises. The lessor must warn
of existing defects of which he is aware or has reason to know, and which he
knows the lessee is not likely to discover on a reasonable inspection. If the lessor
covenants to repair, he is liable for unreasonably dangerous conditions. If the lessor
volunteers to repair and does so negligently, he is liable.
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CMR
SUMMARY DUTY OF POSSESSOR OF LAND TO THOSE ON THE PREMISES
CHART

Duties Owed

Status of Entrant Artificial Natural Active

Conditions Conditions Operations

Undiscovered No duty No duty No duty

Trespasser

Discovered or Duty to warn of or No duty Duty of reasonable

Anticipated make safe known care
Trespasser conditions if
nonobvious and
highly dangerous

Child (if presence on Duty to warn of or Same as for Artificial Duty of reasonable
land foreseeable— make safe if foresee- Conditions but care
attractive nuisance able risk to child balancing test less
doctrine) outweighs expense likely to be met
of eliminating danger

Licensee (including Duty to warn of or Duty to warn of or Duty of reasonable

social guest) make safe known make safe known care
conditions if conditions if
nonobvious and nonobvious and
dangerous dangerous

Invitee (e.g., Duty to make Duty to make Duty of reasonable

member of public, reasonable reasonable care
business visitor) inspections to inspections to
discover nonobvious discover nonobvious
dangerous conditions dangerous conditions
and warn of or make and warn of or make
them safe them safe

C CM R      
Exam Tip If the guest of a tenant is injured, the landlord may be liable as lessor
of the premises. But don’t stop there—remember that the tenant may also be liable
to the guest because of the tenant’s status as the owner/occupier of the premises.

4) Duties of Vendor of Realty

A vendor must disclose to the vendee concealed, unreasonably dangerous condi-
tions of which the vendor knows or has reason to know, and which he knows the
vendee is not likely to discover on a reasonable inspection.
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d. Statutory Standards of Care

A clearly stated specific duty imposed by a statute providing for criminal penalties
(including fines) may replace the more general common law duty of due care if: (i)
plaintiff is within the protected class, and (ii) the statute was designed to prevent the
type of harm suffered by plaintiff.

1) Excuse for Violation

Violation of some statutes may be excused where compliance would cause more
danger than violation or where compliance would be beyond defendant’s control.

2) Effect of Violation or Compliance

Under the majority view, an unexcused statutory violation is negligence per se;
i.e., it establishes the first two requirements in the prima facie case—a conclusive
presumption of duty and breach of duty. In contrast, even though violation of the
applicable statute may be negligence, compliance with the statute will not neces-
sarily establish due care.

4. Duty Regarding Negligent Infliction of Emotional Distress

The duty to avoid negligent infliction of emotional distress may be breached when the defen-
dant creates a foreseeable risk of physical injury to the plaintiff. The plaintiff usually must
satisfy two requirements to prevail: (i) the plaintiff must be within the “zone of danger”; and
(ii) the plaintiff must suffer physical symptoms from the distress.

a. Plaintiff Must Be Within the “Zone of Danger”

The plaintiff usually must show that her distress has been caused by a threat of physical
impact.

b. Plaintiff Must Suffer Physical Symptoms from the Distress

Most courts usually require that the defendant’s conduct cause the plaintiff emotional
distress that manifests itself in physical symptoms (note that severe shock to the
nervous system that causes physical symptoms will satisfy this requirement). A growing
minority of states have dropped the requirement of physical symptoms.

c. Special Situations Where Requirements Not Always Necessary

1) Bystander Not in Zone of Danger Seeing Injury to Another
A bystander outside the “zone of danger” of physical injury who sees the defendant
negligently injuring another can recover damages for her own distress as long as
(i) the plaintiff and the person injured by the defendant are closely related, (ii) the
plaintiff was present at the scene of the injury, and (iii) the plaintiff personally
observed or perceived the event. Most states still require physical symptoms, but
the modern trend drops that requirement.

2) Special Relationship Between Plaintiff and Defendant

The defendant may be liable for directly causing the plaintiff severe emotional
distress that leads to physical symptoms when a duty arises from the relationship
between the plaintiff and the defendant, such that the defendant’s negligence has
great potential to cause emotional distress (e.g., doctor’s misdiagnosis that patient
has terminal illness).
 C CM R CONVISER MINI REVIEW 7.

3) Other Situations
The plaintiff may be able to recover without proving the zone of danger and
physical symptoms requirements where the defendant’s negligence creates a great
likelihood of emotional distress (e.g., erroneous report of a relative’s death or
mishandling of a relative’s corpse).

C CM R Exam Tip Keep in mind that the torts for infliction of emotional distress are not the
only means of recovering damages for emotional distress. If physical injury has been
caused by commission of a tort, plaintiff can “tack on” damages for emotional distress
as a “parasitic” element of his physical injury damages, without the need to consider the
elements of the emotional distress torts.

5. Affirmative Duties to Act

Generally, one does not have a legal duty to act. Exceptions to this rule exist, however:

a. Assumption of Duty by Acting

One may assume a duty to act by acting (e.g., once defendant undertakes to aid
someone, he must do so with reasonable care).

Exception: Many states have enacted Good Samaritan statutes, which exempt doctors,
nurses, etc., from liability for ordinary, but not gross, negligence.

b. Peril Due to Defendant’s Conduct

One has a duty to assist someone he has negligently or innocently placed in peril.

c. Special Relationship Between Parties

A special relationship between the parties (e.g., parent-child) may create a duty to act.
Similarly, common carriers, innkeepers, shopkeepers, and others that gather the public
for profit owe duties of reasonable care to aid or assist their patrons. In addition, places
of public accommodation have a duty to prevent injury to guests by third persons.

d. Duty to Prevent Harm from Third Persons

Generally, there is no duty to prevent a third person from injuring another. An affirma-
tive duty may be imposed, however, if one has the actual ability and authority to control
a person’s actions, and knows or should know the person is likely to commit acts that
would require exercise of this control.

C. BREACH OF DUTY
Where defendant’s conduct falls short of that level required by the applicable standard of care
owed to the plaintiff, she has breached her duty. Whether the duty of care is breached in an
individual case is a question for the trier of fact. Plaintiff may use one of the following theories to
show proof of the breach:

1. Custom or Usage
Custom or usage may be used to establish the standard of care, but does not control the
question of whether certain conduct amounted to negligence. For example, although certain
behavior is custom in an industry, a court may find that the entire industry is acting negli-
gently.
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2. Violation of Statute
Existence of a duty owed to plaintiff and breach thereof may be established as a matter of
law by proof that defendant violated an applicable statute (“negligence per se”). Causation
and damages must still be established by plaintiff.

3. Res Ipsa Loquitur

In some cases, the very occurrence of an event may tend to establish a breach of duty. The
doctrine of res ipsa loquitur requires plaintiff to show that (i) the accident causing the injury
is a type that would not normally occur unless someone was negligent, and (ii) the negli-
gence is attributable to defendant (i.e., this type of accident ordinarily happens because of the
negligence of someone in defendant’s position). This can often be shown by evidence that the
instrumentality causing the injury was in the exclusive control of defendant. (Plaintiff must
also establish freedom from fault on his part.)

a. Effect of Res Ipsa Loquitur

Where res ipsa loquitur is established, plaintiff has made a prima facie case and no
directed verdict may be given for defendant. Plaintiff can still lose, however, if the infer-
ence of negligence is rejected by the trier of fact.

C CM R Exam Tip Questions testing on res ipsa loquitur often have the defendant making a
motion for a directed verdict. These questions don’t require you to memorize rules of
civil procedure—all you need to remember is the following:

(i) Deny defendant’s motion for directed verdict if plaintiff has established res ipsa
loquitur or presented some other evidence of breach of duty (such as defendant’s
violation of a statute);

(ii) Grant defendant’s motion if plaintiff has failed to establish res ipsa loquitur and
failed to present some other evidence of breach of duty.

Occasionally, plaintiff may also move for a directed verdict. Plaintiff’s motion should
always be denied except in the rare case where plaintiff has established negligence per
se through violation of an applicable statute and there are no issues of proximate cause.

D. CAUSATION
Once negligent conduct is shown (a breach of the standard of care owed a foreseeable plaintiff),
plaintiff must show that the conduct was the cause of his injury. For liability to attach, plaintiff
must show both actual cause and proximate cause.

1. Actual Cause (Causation in Fact)

Before defendant’s conduct can be considered a proximate cause of plaintiff’s injury, it must
first be a cause in fact of the injury. Several tests exist:

a. “But For” Test

Act or omission is the cause in fact of an injury when the injury would not have
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occurred but for the act. This test applies where several acts (each insufficient to cause
the injury alone) combine to cause the injury.

b. Joint Causes—Substantial Factor Test

Where several causes bring about injury, and any one alone would have been sufficient
to cause the injury, defendant’s conduct is the cause in fact if it was a substantial factor
in causing the injury.

c. Alternative Causes Approach

This test applies when there are two acts, only one of which causes injury, but it is not
known which one. The burden of proof shifts to defendants, and each must show that
his negligence is not the actual cause. [Summers v. Tice]

C CM R Exam Tip Distinguish these last two tests: Under the joint causes approach, both
parties caused the harm. Under the alternative causes approach, although both parties
acted negligently, only one caused the harm.

2. Proximate Cause (Legal Causation)

In addition to being a cause in fact, the defendant’s conduct must also be the proximate cause
of the injury. Even though the conduct actually caused plaintiff’s injury, it might not be
deemed to be the proximate cause. Thus, the doctrine of proximate causation is a limitation
of liability and deals with liability or nonliability for unforeseeable or unusual consequences
of one’s acts.

a. General Rule—Scope of Foreseeable Risk

A defendant generally is liable for all harmful results that are the normal incidents of
and within the increased risk caused by his acts. This is a foreseeability test.

C CM R Exam Tip Questions raising proximate cause issues will not require you to make
a judgment call on foreseeability in a close case. Often the call of the question will
be whether one or both parties are entitled to summary judgment—which should be
denied if there is any issue of foreseeability for the jury. In other cases, the facts in the
question will be so clear-cut that common sense will tell you immediately whether the
harm that occurred was foreseeable.

b. Liability in Direct Cause Cases

In a direct cause case, where there is an uninterrupted chain of events from the negli-
gent act to plaintiff’s injury, defendant is liable for all foreseeable harmful results,
regardless of the unusual manner in which they arose or the unusual timing of cause
and effect. Defendant is not liable for unforeseeable harmful results not within the risk
created by defendant’s negligence. Most harmful results will be deemed foreseeable in
direct cause cases.

c. Liability in Indirect Cause Cases

In an indirect cause case, an affirmative intervening force (e.g., an act by a third person,
an act of God) comes into motion after defendant’s negligent act and combines with it to
cause plaintiff’s injury.
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1) Foreseeable Results Caused by Foreseeable Intervening Forces—Defendant

Liable
Defendant is liable where his negligence caused a foreseeable harmful response or
reaction from a dependent intervening force or created a foreseeable risk that an
independent intervening force would harm plaintiff.

a) Common Dependent Intervening Forces

The following dependent intervening forces are almost always foreseeable:
(i) subsequent medical malpractice, (ii) negligence of rescuers, (iii) efforts to
protect the person or property of oneself or another, (iv) injuries caused by
another “reacting” to defendant’s actions, (v) subsequent diseases caused by a
weakened condition, and (vi) subsequent accident substantially caused by the
original injury.

b) Independent Intervening Forces

Independent intervening forces that are not a natural response or reaction to
the situation created by the defendant’s conduct may be foreseeable if defen-
dant’s negligence increased the risk of harm from these forces. Independent
intervening forces include (i) negligent acts of third persons, (ii) crimes and
intentional torts of third persons, and (iii) acts of God.

2) Foreseeable Results Caused by Unforeseeable Intervening Forces—Defendant

Usually Liable
Defendant is liable where his negligence increased the risk of a foreseeable
harmful result and that result is ultimately produced by an unforeseeable inter-
vening force. This rule does not apply where the unforeseeable intervening force
was a crime or intentional tort of a third person.

3) Unforeseeable Results Caused by Foreseeable Intervening Forces—Defendant

Not Liable
In the rare case where a totally unforeseeable result was caused by a foreseeable
intervening force, most courts hold defendant not liable.

4) Unforeseeable Results Caused by Unforeseeable Intervening Forces—

Defendant Not Liable
Intervening forces that produce unforeseeable results (results not within the
increased risk created by defendant’s negligence) are generally deemed unforesee-
able and superseding. Superseding forces break the causal connection between
defendant’s initial negligent act and plaintiff’s ultimate injury, thus relieving defen-
dant of liability.

d. Unforeseeable Extent or Severity of Harm—Defendant Liable

In all cases, defendant takes his plaintiff as he finds him; i.e., defendant is liable for all
damages, including aggravation of an existing condition, even if the extent or severity
of the damages was unforeseeable. This is also known as the “eggshell-skull plaintiff”
rule.
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CMR
SUMMARY PROXIMATE CAUSE RULES
CHART

Direct Cause Cases Indirect Cause Cases

Foreseeable Unforeseeable
Intervening Force Intervening Force

Foreseeable Defendant liable Defendant liable Defendant liable

Harmful Result unless intervening
force is crime or
intentional tort

Unforeseeable Defendant not liable Defendant not liable Defendant not liable;
Harmful Result intervening force is
superseding

E. DAMAGES
Damage is an essential element of negligence; thus, damage will not be presumed (and nominal
damages are not available).

1. Personal Injury
Plaintiff is to be compensated for all his damages (past, present, and prospective), both
economic damages (such as medical expenses) and noneconomic damages (such as pain and
suffering). Foreseeability of the extent of harm is generally irrelevant; i.e., one takes one’s
plaintiff as one finds him. A plaintiff suffering physical injury also may recover damages for
any resulting emotional distress.

2. Property Damage
The measure of damage is the reasonable cost of repair or, if the property is nearly
destroyed, its fair market value at the time of the accident.

3. Punitive Damages
Punitive damages generally are not available in negligence cases. However, a plaintiff
may recover punitive damages if defendant’s conduct is “wanton and willful,” reckless, or
malicious.

4. Nonrecoverable Items
Nonrecoverable items include: (i) interest from the date of damage in a personal injury
action, and (ii) attorneys’ fees.

5. Duty to Mitigate
As in all cases, plaintiff has a duty to take reasonable steps to mitigate damages (e.g., seek
appropriate treatment).
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6. Collateral Source Rule

Damages are not reduced just because plaintiff received benefits from other sources (e.g.,
health insurance).

F. DEFENSES TO NEGLIGENCE

1. Contributory Negligence
Contributory negligence is negligence on the part of the plaintiff that contributes to her
injuries. The standard of care for contributory negligence is the same as for ordinary negli-
gence. Hence, a rescuer will not be deemed contributorily negligent without taking into
account the emergency situation. Also, plaintiff’s violation of an applicable statute may be
used to establish his contributory negligence.

a. As Defense to Defendant’s Violation of Statute

Contributory negligence is a defense to negligence proved by defendant’s violation of
an applicable statute unless the statute was designed to protect this class of plaintiffs
from their incapacity and lack of judgment (e.g., child injured after darting into street in
school zone and getting hit by speeding car of defendant).

b. No Defense to Intentional Torts

Contributory negligence is not a defense to wanton and willful misconduct or inten-
tional tortious conduct.

c. Effect of Contributory Negligence

Contributory negligence completely barred plaintiff’s right to recovery at common law.
Almost all jurisdictions now favor a comparative negligence system (see infra).

d. Last Clear Chance—An Exception to Contributory Negligence

Last clear chance permits plaintiff to recover despite her contributory negligence. Under
this rule, the person with the last clear chance to avoid an accident who fails to do so is
liable for negligence. (Last clear chance is essentially plaintiff’s rebuttal to the defense
of contributory negligence.)

1) Helpless Peril
In many states, where the plaintiff is in “helpless peril,” defendant will be liable if
he knew or should have known of plaintiff’s predicament.

2) Inattentive Peril
In “inattentive peril” situations (i.e., plaintiff could have extricated herself if atten-
tive), defendant must actually have known of plaintiff’s predicament.

3) Prior Negligence Cases

For the last clear chance doctrine to apply, defendant must have been able, but
failed, to avoid harming plaintiff at the time of the accident. If defendant’s only
negligence occurred earlier, the doctrine will not apply.
 C CM R CONVISER MINI REVIEW 13.

CMR
COMPARISON NEGLIGENCE DEFENSES
CHART

Implied Pure Partial

Contributory Assumption Comparative Comparative
Negligence of Risk Negligence Negligence

Defined Plaintiff’s own Plaintiff knew of a Plaintiff’s own Plaintiff’s own

negligence risk of injury and negligence negligence
contributes to her voluntarily contributes to her contributes to her
injury assumed it injury injury

Effect Plaintiff’s claim Plaintiff’s claim Plaintiff’s damage Plaintiff’s damage

completely barred completely barred award reduced by award reduced if
percentage of her fault is below
fault attributable the threshold
to her level; otherwise,
plaintiff’s claim is
barred

Defense Yes Not applicable Not applicable Not applicable

Negated by
Defendant’s
“Last Clear
Chance”?

Defense Applies No Yes Yes Yes

to Wanton or
Reckless
Tortious
Conduct?
14. TORTS MINI REVIEW

e. Imputed Contributory Negligence

As a general rule, the contributory negligence of a third party will be imputed to a
plaintiff (and bar her claim) only when the relationship between the third party and
the plaintiff is such that a court could find the plaintiff vicariously liable for the third
party’s negligence. Negligence is imputed in employer-employee, partner, and joint
venturer relationships. Negligence is not imputed between husband and wife, parent and
child, and automobile owner and driver.

2. Assumption of Risk
Plaintiff may be denied recovery if she assumed the risk of any damage caused by defen-
dant’s act. Plaintiff must have (i) known of the risk and (ii) voluntarily proceeded in the face
of the risk.

a. Implied Assumption of Risk

Knowledge may be implied where the risk is one that an average person would clearly
appreciate. Plaintiff may not be said to have assumed the risk where there is no available
alternative to proceeding in the face of the risk or in situations involving fraud, force,
or an emergency. Also, common carriers and public utilities may not limit their liability
by disclaimer, and members of a class protected by statute will not be deemed to have
assumed any risk.

b. Express Assumption of Risk

The risk may be assumed by an express agreement.

c. No Defense to Intentional Torts

Assumption of risk is not a defense to intentional torts, but it is a defense to wanton and
willful misconduct.

3. Comparative Negligence
In comparative negligence states, plaintiff’s contributory negligence is not a complete bar to
recovery. Rather, the trier of fact weighs plaintiff’s negligence and reduces damages accord-
ingly (e.g., if plaintiff is 10% at fault, her damages are reduced by 10%). A majority of states
have adopted partial comparative negligence, which still bars plaintiff’s recovery if his negli-
gence was more serious than defendant’s negligence (or in some states at least as serious as
defendant’s). States that have adopted pure comparative negligence allow recovery no matter
how great plaintiff’s negligence was.

C CM R Exam Tip On the MBE, assume that pure comparative negligence applies unless the
question states otherwise.

a. Effect on Other Doctrines

1) Last Clear Chance

Last clear chance is not used in comparative negligence jurisdictions.

2) Assumption of Risk
Implied assumption of risk is analyzed as either: (i) a limitation on the duty owed
to the plaintiff, i.e., defendant does not owe a duty to protect plaintiff against
known risks (e.g., being hit by a foul ball at a baseball game); or (ii) contributory
 C CM R CONVISER MINI REVIEW 15.

negligence (i.e., the plaintiff unreasonably encountered a known risk, thereby

reducing or barring her damages under the state’s comparative negligence rules).
Situations applying the latter analysis will be the most common. Note that express
assumption of risk continues to be a complete defense.

3) Wanton and Willful Conduct

Plaintiff’s negligence will be taken into account in most states even though the
defendant’s conduct was “wanton and willful” or “reckless.” However, plaintiff’s
negligence is still no defense to intentional tortious conduct by defendant.